The plaintiffs' punitive damages argument is even flimsier than I gave it credit for yesterday. The "smoking gun" is an October 2000 document titled "preliminary summary of data," by Merck biostatistician Deborah Shapiro. (Thomas Ginsberg, "Ex-CEO testifies in Vioxx trial", Philadelphia Inquirer, Apr. 7). Merck did submit the data to the FDA, but in a different format, and the FDA demonstrated that it thought the information was immaterial by not taking action on it. The plaintiffs are effectively asking for hundreds of millions of dollars for a manufactured dispute over layout (without even presenting any evidence that the difference in layout, much less the underlying data, is material), making it all the more outrageous that Judge Higbee did not shut down the punitive-damages proceedings in response to Merck's motion for summary judgment. Again, what home court?